Varieties of Religious Establishment

Lori G. Beaman, Winnifred Fallers Sullivan

• Publisher: Routledge
• Year: 2016
• eBook ISBN:
  9781317002529
• Topic: Theologie & Religion
• Subtopic: Religion

Advocacy for religious freedom has become a global project while religion, and the management of religion, has become of increasing interest to scholars across a wider range of disciplines. Rather than adopting the common assumption that religious freedom is simply incompletely realized, the authors in this book suggest that the starting point for understanding religion in public life today should be religious establishment. In the hyper-globalized world of the politics of religious freedom today, a focus on establishments brings into view the cultural assumptions, cosmologies, anthropologies, and institutions which structure religion and religious diversity. Leading international scholars from a diverse range of disciplines explore how countries today live with religious difference and consider how considering establishments reveals the limitations of universal, multicultural, and interfaith models of religious freedom. Examining the various forms religion takes in Tunisia, Canada, Taiwan, South Africa, and the USA, amongst others, this book argues that legal protections for religious freedom can only be understood in a context of socially and culturally specific constraints.

Chapter 1 Neighbo(u)rly Misreadings and Misconstruals: A Cross-border Conversation

DOI: 10.4324/9781315548401-1

Lori G. Beaman and Winnifred Fallers Sullivan

This volume originated in conversations between two North American scholars of law and religion, one from the US and one from Canada. Notwithstanding a largely shared Anglo-American legal history and the presence of roughly the same immigrant populations and religious communities, we had found an unexpected cross-border illegibility with respect to church/state matters, particularly with respect to ‘establishment.’ While often using the same words, our words at times seemed to have different references and carry different normative weights. As we looked more closely, we began to understand better how real differences in constitutional history and in political culture have constituted and continue to animate quite disparate public debates about the place of religion and of religious diversity in the two countries in unexpected ways.¹ This book extends our cross-border conversation to a longer historical and broader global engagement with the messy contemporary discussions about the legal management of religious diversity under a variety of ‘establishments’ after a widespread collapse of confidence in a hard-edged separationist model.²

¹ We are not the only ones to have noticed the differences in Canadian and US constitutional cultures, of course. See, for example, Martha Field, ‘The Differing Federalisms of Canada and the United States’, Law and Contemporary Problems 55 (1992): 107–120. For an earlier moment in this cross-border conversation, see, also, Lori Beaman, ‘Is Religious Freedom Impossible in Canada?’, Law, Culture and the Humanities 6 (2010): 1–19. ² We join here a number of others who are engaged in related projects. See, for example, After Secular Law, eds Winnifred Fallers Sullivan, Robert Yelle and Mateo Taussig-Rubbo (Stanford, CA: Stanford University Press, 2011); Julian Rivers, The Law of Organized Religions: Between Establishment and Secularism (Oxford and New York: Oxford University Press, 2010); Richard C. Schragger, ‘The Relative Irrelevance of the Establishment Clause’, Texas Law Review 89 (2011): 583–649. See also Politics of Religious Freedom, a collection of chapters published on the SSRC website reflecting on the diversity of approaches to these issues around the world: http://blogs.ssrc.org/tif/the-politics-of-religious-freedom/. In a larger sense, this volume also reflects the new attention being paid to these topics in the wake of the critique of secularism by José Casanova, Talal Asad and others.

In the feverish and volatile world of the politics of international religious freedom today, any differences originating in a North American conversation might seem presumptively parochial – and yet there are interesting and instructive differences between these two religio-legal cultures that drove us to ask the question more broadly. Rethinking the intersection of law and religion today tends to proceed from a concern for the increasingly pressing limits of the politics of religious freedom and a critique of the foundational historical, social and cultural presumptions about religion which are seen to undercut or frustrate the possibility of realizing religious freedom. We thought it might be useful to begin instead from the other end, from what has historically been seen, in the US at least, as freedom’s evil twin, that is, religious establishment. Might it be that thinking that establishment is the natural state of affairs, rather than freedom, would allow us to gain a new purchase on this troublesome area?

Eschewing, then, the assumption that human flourishing and “religious freedom” necessarily proceed from separation of religion and the state, either as a social fact or as a desideratum, we saw a focus on establishment as a way to see anew how political, social, cultural and legal factors structure religion. Although, of course, there is a sense in which ‘establishment’ is peculiarly tied to the history of the Church of England, and establishment issues might therefore be said to be uniquely a feature of the countries of the former British Empire, we sought to ask whether, following our intuition that all societies, including the US, have ‘established’ forms of religion, ‘establishment’ might prove comparatively valuable, rather than being inescapably bound, even in its varieties, to the peculiar political and colonial history of the North Atlantic and its diaspora legal systems.³

³ See Evan Haefli, ‘Toleration and Empire: The Origins of American Religious Diversity’, in The American Colonies in the British Empire, supplemental volume of the Oxford History of the British Empire, ed. Stephen Foster (Oxford: Oxford University Press, forthcoming).

We think that the chapters in this volume confirm both the richness of the cross-border conversation (see McGowan’s chapter in this volume, for example) and the value of beginning with establishment. From ancient India to contemporary Tunisia, the contributors to this volume, historians, legal scholars, sociologists and scholars of religion, explore the often unexpected ways in which the conjunction of religious, political, and legal texts and institutions inform, constrain and liberate human beings in various times and places. These new perspectives do not just provincialize North American preoccupations. They also, we believe, begin to enlarge the possibilities for imagining new religio-legal formations.

There is an explosion of publishing on religious freedom today. This volume proceeds on the assumption that the often premature rush to normative closure in much of this literature is obscuring the fascinating and politically important complex of issues that have arisen since religious freedom went viral. We are particularly interested in the links between establishment and religious freedom; these chapters aim to both unravel those links, as well as to examine more fully the analytical possibilities that emerge when such examinations move beyond conventional dichotomies and border maintenance.

Defining Establishment

North Americans on the US side of the border have a particular historical allergy to the establishment of religion, one that can be traced to the politics of American colonization, revolution, and constitutional founding, but it is also one which continues to underwrite the claim which is made to American exceptionalism when it comes to religious freedom. A particularly strong variant of this historical narrative appears in the Opinion for the Court in the recent United States Supreme Court decision in Hosanna-Tabor v EEOC (2012). Prefacing a decision constitutionalizing a ministerial exception to the Americans with Disabilities Act, Justice Roberts tells a church-state history which begins with King John and Magna Carta and ends with the First Amendment to the US Constitution. The chief villain of the piece is Henry VIII, who is depicted as having ended the religious liberty earlier confirmed in Magna Carta by establishing/nationalizing ‘the church’. Giving the back of its hand to the Church of England, ‘the church’ figures throughout the Court’s opinion as a mystical transhistorical entity that is naturally entitled to freedom, a freedom it only properly attained with the ratification of the Bill of Rights.⁴

⁴ Hosanna-Tabor v EEOC, slip opinion at 6–10.

Our cross-border comparison had begun with the slightly startling observation by Sullivan that in the United States ‘we don’t have a state and we don’t have a church’.⁵ As for the state, for those outside of the US, the statement that ‘we don’t have a state’ is difficult to make sense of, particularly given the historically weighty, not to say threatening, presence of the United States on the international stage. Yet the American sense of the state as a domestic actor is really very distinct from the state as heir to the absolutism of the European monarchies, and frames the domestic discussion of religious establishment in very particular ways. ‘We don’t have a state’ because ‘we the people’ understand ourselves to be in charge of what is only a limited government. We are responsible for ourselves. We are not the responsibility of a state. Actions by the US government, particularly outside the US, certainly have state-like effects, but there is little reverence for, interest in or tolerance for state paternalism in the US itself.⁶ The US does not have a church, in the church-state sense, because American Christianity, as well as the other US-based religious communities that have adopted its institutional forms, have been dominated historically by the free-church model of the antinomian branch of the Reformation, through an explicit rejection of the Church of England – and later in a negative response to Catholic immigration. The free-church model has become largely naturalized in the US, even for Catholics and many non-Christian communities.⁷ Indeed, oddly the Catholic Church in the US seems to speak of itself at times as a free church. While US political and cultural ways of life are saturated with Protestant anthropologies and cosmologies, and are sometimes described as having the effect of a de facto Protestant establishment, there is little history of formal institution-to-institution, church-state cooperation of the British, European or even of the Canadian, kind. (What Peter Beyer in this volume calls ‘mutual modeling.’) Religious participation in public life in the US has been largely through para-church organizations and other voluntary initiatives and the informal politics of cultural elites, while the legal, social and political privileging of Protestant Christian forms, although real, is usually conveniently forgotten (except perhaps in Hawaii, as Johnson explains in his chapter exploring the varieties of what we might call ‘virtual’ establishment in the U.S.). The US establishment is an establishment which pretends to reject establishment.⁸

⁵ Sullivan, ‘Religion Naturalized: The New Establishment’, in After Pluralism, eds Courtney Bender and Pamela Klassen (New York: Columbia University Press, 2010). ⁶ Indeed skepticism about government can be found across the political spectrum. ⁷ See Philip Hamburger, Separation of Church and State (Cambridge, MA: Harvard University Press, 2002) and Samuel Freedman’s recent New York Times article about a Jewish law professor arguing that the conservative movement is in violation of the anti-trust laws when it seeks to control the hiring of rabbis. Samuel Freedman, ‘Seeing and Battling a “Cartel” in the Hiring of Rabbis’, The New York Times, 25 August 2012, A15. ⁸ See David Sehat, The Myth of American Religious Freedom (Oxford: Oxford University Press, 2011).

The dual Protestant-Catholic establishment at the time of Canadian Confederation, on the other hand, described in Berger’s and Beyer’s chapters in this volume, combined with a lower level of individualism and rights talk in Canada, presents an interesting contrast to the relentless populism of US religion and politics. The Constitution Act, 1867, recognized the distinct religious and legal identities of Roman Catholics and Protestants by guaranteeing funding for their schools in those provinces in which each was a minority group. To be sure, linguistic differences were also a consideration in this arrangement, but to characterize it as being solely about language would be a gross simplification. We might say in the Canadian context that we very much have a state and we somewhat have a church – or churches. The Canadian expectation that ‘the state’ plays a role in myriad issues at numerous levels contrasts dramatically with the anti-statist rhetoric that dominates the US scene. Canada somewhat has a church because, although there is no one state-endorsed church, neither the Constitution nor the state has ever taken a separationist or disestablishmentarian approach to religion. Indeed, Canadian multiculturalism, including the eventual recognition of the rights of First Nations peoples, looks in some ways more like the multiple ‘establishments’ of various northern European countries than like the free market in religion often touted in the US. David Martin argues that relatively early on in its history Canada (as well as Australia) did not have an established church per se, but rather a shadow establishment whose contours were shaped by the dual religious groups mentioned above.⁹ Even when the opportunity arose to clarify the relationship between the state and religion during the drafting of the Charter of Rights and Freedoms in the late 1970s and early 1980s, the Canadian drafters included a freedom of religion clause but, in contrast to the separationist language of the US Constitution, included in the preamble a specific mention of God, putting ‘The Supremacy of God’ side by side with ‘the rule of law’.¹⁰

⁹ See David Martin, ‘Canada in Comparative Perspective’, in Rethinking Church, State and Modernity: Canada between Europe and America, eds David Lyon and Marguerite van Die (Toronto: University of Toronto Press, 2000), 23–33; John S. Moir, Church and State in Canada, 1627–1867: Basic Documents. (Toronto: McClelland & Stewart, 1967); and Denise J. Doyle, ‘Religious Freedom and Canadian Church Privileges’, Journal of Church and State 26 (1984): 293–311. ¹⁰ See Bruce Ryder, ‘State Neutrality and Freedom of Conscience and Religion’, The Supreme Court Law Review 28 (2005): 169–77, for the argument that the inclusion of God in the preamble possibly represents an openness to alternative spiritual ways of reasoning, rather than a strict endorsement of Christianity. For an excellent set of reflections on religion, pluralism and law in Canada, see Richard Moon, Law and Religious Pluralism in Canada, (Vancouver: University of British Columbia Press, 2008).

How do these rather different contexts shape religion and the ways in which the greatly expanded religious diversity of the twenty-first century is understood and managed today? In the US there is far less public interest than in Canada in the official enabling of minority religious practice.¹¹ For the most part, with a few exceptions, it is the Christian majority that is insisting on its rights in the US, and it is largely successful in this endeavor. The lack of challenge to the inequities of the politics of religious freedom in the US is due in part to the peculiar politics of equality more generally in the US today, one in which the majority can gain traction by arguing that it is a victim of discrimination. While formally enabling minority religions in the US would be rhetorically cast as elevating religion over non-religion, enabling majoritarian Christian culture is regarded as areligious, a matched set of paradoxical moves made possible in part by a centuries-old Protestant theological polemics against ‘religion’. In contrast, in the Canadian context, ‘accommodation’ of religious practice is very much a live debate, particularly in Quebec, whose unique religious and political culture places it squarely between the strong laïcité politics of France and the more fluid church-state approach found in the rest of Canada.

¹¹ An interesting exception to this generalization might be seen in the context of accommodating workplace discrimination although that accommodation is relentlessly individualistic. One might even see this displacement to the employment context as generating the result in Hosanna-Tabor.

Beyond the details of this North American history, the language of disestablishment has recently become a more common touchstone in scholarly work and public discourse in other parts of the world, as practical global politics presses on lawmakers around the world.¹² (Establishmentarian concerns are also evident in the new constitution-making in the wake of the revolutions in the Middle East, as Zeghal’s chapter in the volume attests.) Widening the lens in this way connects this project to the broader reappraisal of secularization by scholars such as José Casanova and Talal Asad, and their many interlocutors, and invites a retelling of religio-legal history both longitudinally and geographically. Contemporary political arrangements with respect to religion are better understood when understood genealogically or placed next to imperial and postcolonial retellings of political history.

¹² Recent work illustrating this new attention to establishment includes Julian Rivers, The Law of Organized Religions, James Torke, ‘The English Religious Establishment’, Journal of Law and Religion 12 (1996): 399–446. Discussion of church-state and establishment enters into conversations about education in Myriam Hunter-Hénin’s Law, Religious Freedoms and Education in Europe (Burlington, VT: Ashgate, 2011), as well as in Marie-Claire Foblets, Jean-François Gaudreault-DesBiens and Alison Dundes Renteln, eds, Cultural Diversity and the Law: State Responses from Around the World (Montréal: Yvon Blais, 2010).

One of our concerns in this volume is to mine the richness of the varieties of what we are calling establishment without reifying it as a core organizing concept. In other words, through an exploration of varieties, we seek to destabilize the notion that there is one model to which all must subscribe, but also to question the notion that dis-establishment is an essential tool in the religious diversity and religious freedom toolkits. We also seek to de-coup...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• List of Contributors
• Acknowledgments
• 1 Neighbo(u)rly Misreadings and Misconstruals: A Cross-border Conversation
• Part I Theory and Structure
• Part II Retelling Religio-Legal Histories
• Part III Rethinking Law’s Capacities
• Index